Contribution 分擔

Equitable Doctrine of Contribution 有關分擔的衡平法則

Contribution flows from the principle of indemnity. An insured who covers the same risk with more than one insurer cannot collect a full payment from each of them after a loss, because that would let them profit from the loss. The insurers share the loss between them, and the total paid is limited to the actual loss.

Under the equitable doctrine, if no policy condition says otherwise, the insured may claim the full amount from any one insurer, up to that policy's sum insured or limit. The insurer that pays can then recover from the other insurers that are also liable the share each of them should bear. This is a right between insurers. The insured has no right of contribution.

Contribution and subrogation both follow from indemnity, but they work against different parties. Under subrogation the insurer takes over the insured's rights against a third party who is liable for the loss. Under contribution the insurers share the same loss among themselves. Both apply only to contracts of indemnity.

Rateable Proportions 比率之數

Rateable proportion means each insurer bears the loss in proportion to its liability, not in equal shares. There are two common bases of calculation: the maximum liability (sum insured) basis and the independent liability basis.

Maximum liability (sum insured) basis: each insurer's share = its sum insured ÷ total of all sums insured × loss. For example, if Policy A has a sum insured of HK$300,000, Policy B has HK$200,000 and the loss is HK$50,000, A pays HK$30,000 and B pays HK$20,000. This basis is generally used for property policies that cover the same property (concurrent policies) and are not subject to average.

Independent liability basis: first work out what each policy would pay if it were the only policy, applying its own limit, excess, average and so on. That figure is its independent liability. The loss is then shared in proportion to these independent liabilities. This basis is normally used for liability insurance, and for property policies that cover different ranges of property (non-concurrent policies) or are subject to average.

Whichever basis is used, the insurers together never pay more than the actual loss, and no insurer pays more than its own policy limit.

How Arising 如何產生

Contribution arises where there is double insurance, meaning the same loss is covered by two or more policies. The usual conditions, all of which must be met, are: (1) there are two or more policies of indemnity; (2) they cover a common insurable interest; (3) they cover a common subject matter; (4) the loss is caused by a peril common to the policies; and (5) each policy is liable for the loss.

The policies do not have to be identical. It is enough that their cover overlaps for the loss that has happened. For example, a household contents policy and a personal all risks policy may both cover the same stolen item.

If the policies protect different interests of different people, contribution does not arise even when the subject matter is the same. For example, the owner of goods and a bailee holding those goods may each insure them for their own interest. Because the policies protect different interests, the insurers do not contribute to each other.

How Applicable 如何適用

Contribution applies only to contracts of indemnity, such as property insurance, liability insurance and medical expense reimbursement cover. Life insurance and personal accident cover that pays fixed benefits (for example, an accidental death benefit) are not contracts of indemnity. The insured can claim the full benefit under each policy, and contribution does not arise.

A policy that is not liable at the time of loss does not take part in contribution, and the other insurers cannot ask it to contribute. Examples are a policy that has lapsed, one avoided for breach of utmost good faith, or one under which the loss is an excluded peril.

When calculating shares, first check whether the policies cover the same range of property. Concurrent policies without average normally use the sum insured basis. Non-concurrent policies, policies subject to average and liability policies normally use the independent liability basis.

How Amended by Policy Conditions 如何被保單條件更改

Most non-marine indemnity policies contain a contribution condition (also called a rateable proportion clause). It states that if, at the time of loss, other insurance covers the same loss, this insurer pays only its rateable proportion. The condition removes the insured's right to collect the full amount from one insurer. The insured must instead claim each insurer's share from that insurer, rather than leaving the insurers to recover from one another.

Some policies change the position further with other conditions. A "more specific insurance" clause states that if another policy covers the item more specifically, that policy pays first and this policy covers only any shortfall. A "non-contribution" or "excess" clause states that this policy pays only what is left after other insurance has paid. Policies also often require the insured to declare any other insurance.

In marine insurance, under the Marine Insurance Ordinance (Cap. 329), where there is double insurance the insured may, unless the policy provides otherwise, claim from the insurers in any order they choose. However, the insured cannot receive more than an indemnity in total, and an insurer that has paid may require the other insurers to contribute rateably.